Covered or Not? Common Maritime Work and the Longshore Act

There is an inexhaustible supply of questions regarding coverage under the Longshore and Harbor Workers’ Compensation Act (LHWCA or Longshore Act) (33 U.S.C. 901 et seq.). Recently, so many questions arose in one day (six) that I was reminded of my (too) often repeated observation that it is very difficult to answer most coverage questions with an unconditional yes or no.

I’ll review those questions, and I think you’ll see what I mean.

Note: The issues of “status” and “situs” have been discussed very often here at AEU’s Longshore Insider. Under the LHWCA a worker must be 1) occupationally engaged in “maritime employment” (status), 2) the injury must occur on a covered situs, and 3) no statutory exclusion applies.

 

Question 1: Employees of a marina regularly engage in maintenance and repair work on the vessels docked at the marina. Are these workers covered by the LHWCA?

Vessel maintenance and repair constitute maritime employment, and we are assuming that the marina is located on navigable waters of the United States (of the many definitions, for LHWCA purposes this means capable of carrying interstate or international commerce). These workers appear to meet status and situs.

But Section 902(3)(C) of the LHWCA states that, “individuals employed by a marina and who are not engaged in construction, replacement, or expansion of such marina” are excluded from coverage.

This exclusion is based on the nature of the employing enterprise. If the employer is a marina, then these marina employees performing maintenance and repair work on vessels are not covered by the LHWCA even though they are engaged in maritime employment on a covered situs. The condition for the exclusion to apply is that the workers must be subject to coverage under a State workers’ compensation law.

 

Question 2: Is concrete repair work on an existing bridge covered under the Longshore Act?

The general principle is that work on bridges is not covered by the LHWCA. Completed bridges are considered extensions of land. Bridges were not considered to be covered sites prior to the 1972 Amendments and were not included in the amended section 903(a) when certain locations were enumerated as covered sites (an adjoining pier, wharf, dry dock, terminal, building way, or marine railway).

Of course, there are circumstances that may modify this general principle.

For example, if the workers are working from vessels or floating work platforms this may implicate LHWCA coverage under the Perini principle (see below), or it may raise issues of Maritime Employers Liability (MEL) under the Jones Act and General Maritime Law (GML) for injuries to workers who qualify as crewmembers of vessels.

Are the workers repairing a drawbridge? You may not be able to rule out LHWCA coverage on the theory that these workers are “harbor workers” improving the flow of maritime commerce.

Are these workers unloading material and equipment from vessels? If so, this could support an argument for maritime status. Are the workers working from scaffolds or other structures affixed to the bridge but hanging over the water? If so, does this raise Perini issues (still see below)?

As usual, when you are considering coverage issues under the LHWCA you need as much information as possible about the job.

NOTE: Under Director, Office of Workers’ Compensation Programs, U.S. Department of Labor v. Perini North River Associates (Churchill), 459 U.S. 297 (1983) any work upon the navigable waters is covered, under the original 1927 coverage test which only depended on the location of the injury. You do not have to meet the 1972 Amendments status requirement if you are injured while working afloat “upon” the navigable waters. Working on the bridge or from a scaffold or platform affixed to the bridge most likely would not satisfy Perini.

 

Question 3: The next question involves truck drivers. In this case they are driving on to barges, where the trucks are secured by barge crew, while the drivers remain in the trucks (union rules) during the trip to national parks to perform cleanup work. Upon arrival, the drivers drive off the barges, fill up with trash and debris, and return to the barges for the return trip and the disposal. What remedy do these truck drivers have in the event of an on-the-job injury?

They are driving on and off vessels and are working over the water part of the time, so the question of possible LHWCA coverage should arise. So as always, start with status and situs.

For the first part of the job, the drivers are coming from inland locations, driving empty trucks on to the barges, and remaining in the trucks essentially as passengers while the barges travel to the work location. They may not have maritime status yet (I’ll consider Perini at the end of the discussion). They haven’t loaded/unloaded anything yet, and they have no duties on the barge.

Once they arrive at the work site, they drive off the barge, fill up the trucks, and drive back on to the barge. This is starting to sound like maritime status. Although trash and debris are not what you ordinarily think of as commercial cargo, it is material being carried on to a vessel (and carried off at the other end). This is vessel loading and unloading. We know from Northeast Marine Terminal Co. v. Caputo, et al., 432 U.S. 249 (1977) that if any part of a worker’s regular duties is maritime, then he is covered by the LHWCA for his entire employment. I think that these drivers meet maritime status.

What about situs? Unlike the occupational nature of the status test, situs is determined at the time of the injury. These drivers are coming from inland locations (no situs), on to the water (situs) and inland at national parks (no situs). You have possible LHWCA and possible state act coverage depending on where an accident occurs. You need workers’ compensation insurance under two different statutes.

What about MEL? The drivers are spending part of their work time on board vessels. Could they meet the Chandris nature and duration tests for crewmember status (see below)? Probably not. If you are the truck drivers’ employer, however, even though you do not own or operate the vessels, you could find yourself a defendant in a Jones Act lawsuit. You may want to consider incidental MEL coverage.

How does Perini factor into this situation? Since we’ve decided that these drivers meet maritime status because of their loading/unloading duties, we don’t need to consider the “situs confers status” principle of Perini, and the collateral issue of the transient and fortuitous nature of the workers’ presence over the water.

 

Question 4: A piece of construction equipment, an excavator, is driven on to a barge, secured by barge crew, then transported and used in a dredging operation on navigable water. If the excavator operator is injured in the course of the operation, where does he file his claim/lawsuit?

Start with LHWCA status and situs, although the discussion is somewhat academic since he is working while afloat upon the navigable water, he is most likely covered by the LHWCA under Perini. For the sake of argument, let’s say that the barge is permanently affixed to the sea bottom and is thus not “afloat” upon the water. I think that the operator would still meet status as a maritime worker, or harbor worker, and he would meet situs under the “other adjoining area” principle of section 903(a).

But is he a crewmember of the barge and excluded from LHWCA coverage under section 902(3)(G)? The barge is most likely a vessel - even if temporarily spudded or attached to the sea bottom. Just like our truck driver, even though the excavator operator’s employer does not own or operate the barge, it could still find itself sued under the Jones Act by the employee seeking the higher tort recovery compared to the LHWCA’s weekly workers’ compensation benefits. Once again, the employer should consider MEL, at least on an incidental basis.

 

Question 5: What if the excavator is permanently built into the barge for dredging operations? The same argument for LHWCA coverage could be made under Perini as in Question 4, but there is a big difference here. The excavator is a part of the vessel, not just being transported by the vessel. The excavator operator here would have a stronger claim for crew status.

Note: The test for crew status was established in the case of Chandris, Inc. v. Latsis, 515 U.S. 347 (1995) and has two parts. The employee must 1) contribute to the mission or function of the vessel, and 2) must have a substantial employment relationship to the vessel in terms of nature and duration. For the duration element courts use a 30% rule of thumb.  

The resolution of the coverage issue in this case may come down to where the injured worker chooses to seek his remedy, and it is his choice.

If he chooses to go to court and sue for negligence and unseaworthiness under the Jones Act and the GML, he appears to have a good case for crew status. On the other hand, if he chooses to file a claim with the U.S. Department of Labor (DOL) under the LHWCA, it is possible that he would be considered by the DOL to meet status and situs. Unfortunately for the employer, the worker may choose to do both, and the employer will not have a resolution to the coverage issue until the worker’s status is formally adjudicated in one forum or the other. The worker is permitted to pursue two mutually exclusive, contradictory remedies simultaneously (the LHWCA excludes crewmembers and the Jones Act only covers crewmembers). The employer (and the underwriter) is in a difficult situation in these cases that can go either way.

 

Question 6: This question involves sea trials, where shipyard technicians go out on the “vessel” under construction for repairs, adjustments, and finishing touches on various vessel systems. If they are injured, what is their remedy?

We’ll have to decide if the vessel is a “vessel” at this point before we try to sort out the status of the shipyard’s employees and where potential liability lies. There is a question as to when the vessel under construction becomes a “vessel” for purposes of determinations of liability under the various workers’ compensation statutes and maritime liability remedies. I think that if the vessel is at sea trials, thus not 100% completed, and ownership has not yet been transferred to the purchasers, then it is not yet a “vessel” under the Jones Act and GML. Sea trials are still part of the shipbuilding process. (For the sake of argument, even if you assume that we have a “vessel”, I don’t think that the shipyard technicians would be able to satisfy the duration element [30% rule] of the Chandris test for crewmember status.)

This would lead me to conclude that those shipyard employees have a poor chance of making a successful claim for the crewmember remedies.

These employees are almost surely covered by the LHWCA, since they meet status and situs as engaged in shipbuilding at a shipyard, and, redundantly, would be covered under Perini while engaged in sea trials.

These have been very brief discussions, and they do not exhaust all the elements and factors that arise in coverage issues, but you can see the range and type of questions with respect to coverage under the LHWCA as employers are constantly challenged to make sure that they are properly insured for their liability to injured workers. 

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